Jury Selection and Decision making

A
key part of this process is stereotyping. This involves noticing something about
the person and, based on this, attributing them to a particular group of people,
then assuming the person has the charac­teristics of that group. An example
might be notic­ing that the defendant has several tattoos and
stereo­typing him or her as criminal because it is believed that all
criminals have several tattoos.

Lippmann
(1922) defines stereotypes as follows:

‘For
the most part we do not see and then define; we define first and then see. In
the great blooming buzzing confusion of the outer world we pick out what our
culture has already defined for us and we tend to receive that which we have
picked out in the form stereotyped for us by our culture.’

Stereotyping
has been shown to influence the recall and interpretation of information. Duncan
(1976) showed white American participants a film without sound of two men
talking intensely, then one of the men shoved the other. When it was the black
man pushing a white man, 75% of the partic­ipants perceived the push as
violent behaviour, but for the other way around only 17% saw it as violent
behaviour.

In
another experiment, Snyder and Uranowitz (1978) had participants read the
details of the life of ‘Betty K’, with one of two endings to the story. The
story concluded that she was either married or a les­bian. When participants
were asked to recall the number of boyfriends she had had at school (a fact not
given in the story), the answers were based on the stereotypes. For example,
with the lesbian end­ing, the number of boyfriends recalled was lower. Also
participants remembered more of the informa­tion consistent with the
stereotype.

The
practical application here is that people may per­ceive differences and
similarities among group members even when they do not exist. It is important to
note that these snap judgements and stereotypes are not particu­larly
accurate. However, the juror or lawyer’s use of these processes of person
perception is the same as impressions made by people everyday.

Key aspects of
stereotyping

The
text that follows outlines some of the key aspects of stereotyping and snap
judgements.

Physical attractiveness

Within
society, physical attractiveness is prized highly in both sexes, and others
treat such people positively. They receive less harsh sen­tences for the
same crime and they do not fit the stereotype of a criminal.

In an experiment, Sigall and Ostrove (1975)
asked 120 participants to recommend sentences for burglary or fraud either
with or without seeing a photo of the defendant. The photos were either
physically attractive or unattractive. The physically attractive photo received
shorter sentences.

Saladin
et al. (1988) showed participants
eight photos of men and asked them to judge how capable they considered them to
be of committing each of two crimes: murder and armed robbery. Overall, the
attractive men were considered less likely to have committed either crime than
the unattractive ones. This attractiveness effect is strongest with serious but
non-fatal crimes such as burglary, and when females are being judged (Quigley et aL, 1995). An exception to this rule
occurs if people are considered to be using their attractiveness for illegal
material gain, such as in performing confidence tricks or in fraud.

This
effect applies not only in the psychology laboratory but also in the actual
courtroom. Downs & Lyons (1991) analysed the fines and bail payments of
1,500 defendants accused of minor crimes and asked police officers, who were not
told the purpose of their assessments, to rate them on attractiveness. The
results showed that, even when the seriousness of the crime was controlled for,
attractiveness was negatively correlated with the amount of bail or the fine
imposed by the judge. Attractiveness, however, appeared to be irrelevant when
imposing fines or setting bail payments for more serious crimes (McKelvie &
Coley, 1993). Stewart (1980) sent observers into courtrooms to rate defendants
on various traits, including physical attractiveness. The results were similar
to those found in simulated jury studies: when seriousness of the crime and race
were controlled for, there was a significant negative correlation between
attractiveness and length of sentence. In other words, attractive people
received shorter sentences than unattractive people accused of a similar crime.
In this study only one rating of attractiveness was made. Stewart later extended
his research by asking the observers sitting in the courtroom to rate defendants
not only on physical attractiveness but also on cleanliness, neatness and
quality of dress. Using a seven-point scale, defendants were rated as
attractive—unattractive, dirty—clean, sloppy—neat and well dressed—poorly
dressed. Over a two-year period, 60 defendants were observed and it was found
that those who were perceived as attractive, clean, neat and well dressed were
treated with greater leniency than were those rated lower on these four
dimensions. However, although attractiveness affected sentencing, it did not
affect whether or not the defendant was convicted or acquitted.

As
a variation, Kerr (1978) has shown that the physical attractiveness of the
victim can influence the verdict reached by the jury. In the experiment, mock
jurors read about the theft of a car from a physically attractive or
unattractive woman (with a photograph attached to the transcript). The
physically attractive victim was more often supported with a guilty verdict,
regardless of how much care she had taken to protect the vehicle (like using a
steering lock or not).

Other factors

Although
attractiveness is the main variable that has been shown to influence judges and
juries, other features do have an effect. Berry & McArthur (1985) found, in
a mock trial study, that defendants with ‘baby’ faces were more likely than
those with mature ones to be found guilty of negligence in not warning customers
of the possible dangers of the products they were selling. Those with mature
features were more likely to be considered guilty of deliberately deceiving
their customers by telling lies about their products.

However,
not all studies have found a relationship between defendant features and jury
decisions. Bull & McAlpine (1998), in a review of such research, point out
that it is quite possible that many studies finding no effect of appearance on
judgements may have been rejected for publi­cation.

Race

Again
stereotypes are involved, but, in this case, there is evidence of racial bias.
In a mock trial exper­iment, it was found that white students rated black
defendants guiltier than white defendants, par­ticularly when the victim was
white (Pfeifer and Ogloff, 1991). Research on actual trials in USA found that
black defendants received longer sen­tences than white defendants for the
same offence (Stewart, 1980).

The
OJ Simpson trial (1994/5) was viewed as a race-related trial by many. Stably and
Walker (1997), who worked for the legal defence team, noted the psychological
processes at work among viewers of the trial. They highlighted group identity
and the ‘availability heuristic’. The availability heuristic is where we tend to
recall only certain information when making a decision. For example, white
Americans saw the obvious guilt of Simpson because of the physical evidence
against him, while the African-Americans saw police misconduct.

Skolnick
and Shaw (1997) used 213 students in a mock murder trial and varied the
defendant’s race and celebrity status. The former influenced the ver­dict,
but not the latter.

Gordon
et al. (1988) showed that the type of
crime could complicate the effect of race. They varied both the race of the
defendant (black or white) and the type of crime supposedly committed
(embezzlement or burglary). The white embezzler received a significantly longer
sentence than the black embezzler but this situation was reversed for the
burglary. It was suggested that this was because racial stereotypes for
particular crimes were operating, with participants holding the black burglar
and the white embezzler more responsible for their crimes.

Accent

Mahoney
and Dixon (1997) report their research with the ‘Brummie’ (Birmingham) accent.
Generally this accent is perceived of as low status. The researchers played a
two-minute recording of a police interview with a suspect to 119 white
non-Birmingham students. There were a number of ver­sions of the recording
played to different groups, including ‘Brummie’ accent versus ‘non-Brummie’, and
white versus black ‘Brummie’. The students had to assess whether they felt the
speaker was guilty of a particular crime. The ‘Brummie’ accent was
per­ceived as more guilty than the ‘non-Brummie’, and the black ‘Brummie’
was perceived as most guilty, particularly for ‘blue-collar’ crime (like
theft).

Seggie
(1983) found similar results in Australia. Using recordings of suspects arguing
their inno­cence with either ‘standard’ (‘received pronuncia­tion’: RP)
or ‘broad’ Australian accents, or an ‘Asian’ accent, participants were asked to
assess the level of guilt on particular crimes. The ‘standard’ accent was seen
as most guilty on ‘white-collar’ crimes (like fraud), but the ‘broad’ accent was
most guilty for ‘blue-collar’ crimes.

Miscellaneous

The
following variables have all been found to influ­ence the juror’s decisions:
‘powerful speech’ (that is, speaking clearly and without hesitation) by the
defendant, and their demeanour in court (for exam­ple, sitting up straight
and paying attention to the evidence) (Hans and Vidmar, 1986). For example,
during her trial in 1997, Louise Woodward (see page 61) showed no emotions,
which the USA jury interpreted as a display of indifference. She was found
guilty of ‘second degree murder’ (Harrower 1998).

III. THE WITNESS

IV. THE JUDGE

A. Instructions to the Jury to
Disregard Testimony

Almost every lay person who watches
enough television is aware of the possibility that a barrister may ask a witness
a prejudicial or accusatory question or may mention facts that are deemed
inadmissible by the judge. The judge then instructs the jury to ignore the
remarks that have been made. What has intrigued many lay people and
psychologists alike is the issue of whether or not it is possible to erase the
effects of such remarks from the opinions of the individual jurors. This issue
is of great controversy in jurisdictions that have so-called "rape shield"
statutes, where evidence describing a rape victim’s previous sexual history is
deemed inadmissible. If a witness reveals that a rape victim has had many
previous sexual relationships, is it sufficient for the judge to instruct the
jury to disregard this fact when determining the truth of the victim’s claim
that she had not consented to sex?

In a series of mock trial
experiments, it emerged that judges’ instructions had little effect on jurors.
The mock juries were given the details of a homicide case. When the prosecution
relied on weak evidence, none of the juries found the defendant guilty. However,
when a recording of an incriminating telephone conversation was played to the
juries, and the judge subsequently instructed the juries that the tape was not
legal evidence and so should be disregarded, the conviction rate rose to 33%.
Similar experiments have shown that jurors tend to be unaware of the influence
of revealed inadmissible evidence, but that in some mock trials, jurors can
consciously rebel against a judge’s instructions and give the inadmissible
evidence undue emphasis in their decisions.

Psychological research has
discovered possible ways of diminishing the effects of inadmissible evidence. It
appears that initial juror impressions and opinions are hard to erase. Thus, the
first strategy is to attempt to ‘inoculate’ the jury. If, prior to the trial,
the jury is informed about the various types of inadmissible evidence, then the
effects of such evidence arising during the trial appear to diminish. In one
experiment, when mock jurors were shown videotapes of trials and were
subsequently reminded by the experimenter of the importance of the presumption
of innocence, the number of guilty verdicts returned (59%) hardly differed from
the number returned by jurors who were given no such admonition (63%). However,
when the admonition was given before the tape was viewed, only 37% of jurors
returned a guilty verdict. Similar research has shown that jurors are more
likely to find an accused rapist guilty if they are told to disregard
information about the victim’s sexual history before theyactually hear
the information rather than after.

A second strategy to combat the
effects of inadmissible evidence is the use of videotaped evidence. As well as
allowing inadmissible testimony to be edited out, videotapes allow for, perhaps,
speedier trials. Although research indicates that there is little, if any,
difference in the impact of videotaped evidence and live evidence, the procedure
is not popular. Critics point to the rights of due process, the prevention of
jurors from observing the live reactions of the defendant to the witnesses and
the costs involved. In summary, judges’ instructions to juries to disregard
inadmissible evidence is frequently ineffective. However, psychological research
indicates that the matter can in some measure be redressed by inoculating juries
appropriately.

B. Instructions to the Retiring
Jury

Within
the trial itself, there are a number of influ­ences on jury decisions. One
is the inclusion of non-evidence. This is evidence that the judge decides is
legally inadmissible. In other words, it is presented to the jury, then the
decision is made that it cannot be included. Wolf and Montgomery (1977) found
that this type of evidence, which should be ignored, is noticed most by the
jury.

A
key influence is the judge’s instructions during the case. Generally research
has shown that many juries are confused by the legal technicalities. Elwork et al (1981) showed mock jurors a
video­taped trial including the judge’s instructions. Over one-third of the
jurors made the incorrect legal ver­dict. When the judge’s instructions were
clarified, the incorrect verdicts dropped to around 10%.

Instructions
given before the case began had a better effect on the juries’ ability to
integrate facts and the law. Overall, however, written instructions are better
than verbal ones.

C. Judicial
Inconsistency

Judicial discretion allows judges
leeway in handing down sentences. Furthermore, in District Courts and the
Special Criminal Court in Ireland, the judge has the final word on the outcome
of the trial, as there is no jury. Therefore, there is some concern over the
consistency of judges’ interpretations. For example, in the United States, fifty
federal judges were given the details of a case of theft and possession of
stolen goods and were asked to sentence the offender. Their sentences ranged
from probation to 7½ years in prison. Although it is fair to assume a certain
degree of variability among the interpretations and attitudes of different
judges, it is difficult to generalise such research findings to different
jurisdictions and different crimes. Moreover, there is considerable
philosophical and criminological debate over what precisely constitutes an
appropriate sentence in any given case. Thus, the establishment of appropriate
sentencing norms must take place before the issue of judicial inconsistency in
sentencing can adequately be addressed by research
psychologists.

A related issue—concerning legal
reasoning—concerns not just sentencing inconsistencies but also the verdict a
judge may be required to return, as described by Irish psychologist, Paul
O’Mahony. Unless a defendant pleads guilty, the truth of a case may never be
established. Thus, legal reasoning will operate with its highest standard of
proof—‘beyond a reasonable doubt’. However, when this standard of proof is
utilised by a judge, a question arises as to the judge’s subjective assessment
of the facts of the case. What may appear to be established beyond reasonable
doubt to the judge may well be reasonably doubted by other impartial people.
This is important in the light of the issue of judicial inconsistency, in that,
even with the strictest standard of proof available to the legal system,
different judges may well come to different conclusions.

V. THE JURY

A. Juror
Selection

The issue of jury selection
illustrates that psychological research only slowly alters judicial practice. In
the United States, jury candidates for potential death penalty trials are
screened so that opponents of capital punishment are systematically eliminated
from the jury. However, a wealth of research exists to indicate that supporters
of capital punishment are more likely to return a guilty verdict. Supporters of
the death penalty are more likely to be authoritarian, to feel that the legal
system is ‘too soft on the criminal’, that the police don’t make mistakes, and
are more concerned with crime control than with the right of the accused to be
presumed innocent until proven guilty. In short, juries composed of supporters
of capital punishment are not only capable of returning a guilty verdict, but
are actually predisposed to do so. However, in 1986 the US Supreme Court
overturned a lower court decision that such juries represent a biased group.
Some researchers have argued for ‘scientific jury selection’ where
prosecution-biased jurors are identified by means of questionnaires and surveys.
However, some have questioned the ethics of allowing questions to ‘trap’
unsuitable jurors. Furthermore, it is as yet unclear whether scientific jury
selection is practical, useful or even possible. Whereas proponents of capital
punishment are biased in favour of guilty verdicts, opponents of capital
punishment may refuse on moral grounds to return a verdict of guilty—even if
they feel that the accused did actually commit the crime. However, capital
punishment is relevant to only a minority of trials in those countries not to
have abolished it. Thus, in trials where capital punishment in not applicable,
who lays down the criteria for determining an ‘unsuitable’ juror? In such
trials, it appears that the general attitudes and characteristics of jurors are
poor predictors of their verdicts. In general, therefore, the current debate
among psychologists about scientific jury selection has a long way to go before
it can be usefully applied to the courts system.

The voir dire (American term, known as
peremptory challenges in Britain).This is the process of producing an
impartial jury. Blunk and Sales (1977) have provided a useful overview. The voir
dire examina­tion (literally to see and to say) enables the trial judge to
discharge his obligation to dismiss veniremen (those summoned for jury service)
found unfit for trial duty. Counsel are allowed a set number of per­emptory
challenges when the judge refuses to act. The voir dire examination by counsel
is proper so long as it tries to discover the veniremen’s state of mind directly
or indirectly related to the trial in question.

Counsel
have available to them a number of strategies for the voir dire.

1.They can accept the first 12 veniremen
without question or ceremony. A variant of this is accepting them and,
histrionically, declining with a grand gesture the opportunity to question and
explicitly stressing faith in the jury system in general and in these 12 jurors
in particular. This approach is taken in the belief that the jury’s first
impression of counsel is critical in increasing their receptivity toward his
arguments.

2.The voir dire can be used to the full in
the belief both that in depth questioning will reveal prejudices and biases and
that veniremen’s first impressions of counsel are important and will be well
revealed by a lengthy examination. There are obvious dif­ficulties: it is
hard to elicit prejudices; verbal reports of beliefs may lack predictive
validity; counsel may investigate the wrong prejudices or veniremen may simply
lie; perhaps most important, veniremen may resent questioning and so develop an
unfavorable attitude to counsel. Hence:

3.An
indoctrinational strategy has developed around 2, above. It involves
hypothetical questions to analyze potential areas of prejudice so as to
ingratiate counsel with veniremen and make them aware of, and test their
reactions to, certain aspects of the case (counsel’s theory of the case,
acceptable defences, etc.). The questions posed are intended to influence the
jury; counsel has little interest in the answers. This method is much deprecated
judicially.

Kassin
and Wrightsman (1983) constructed a juror bias scale to measure pre-trial bias
amongst jurors.It is unlikely,
however that a judge would agree to the questionnaire.

Items from the juror bias scale (after Kassin and Wrightsman
1983)

Probability of commission

1If a suspect runs from the police
then he probably committed the crime.

2In most cases where the accused
presents a strong defence, it is only because of a good
lawyer.

3Out of every 100 people brought to
trial; at least 75 are guilty of the crime with which they are
charged.

4Defence lawyers don’t really care
about guilt or innocence; they are just in business to make
money.

5Generally the police make an arrest
only when they are sure about who committed the crime.

6Circumstantial evidence is too weak
to use in court.

7Many accident claims filed against
insurance companies are phoney.

8The defendant is often a victim of
his own bad reputation.

9If the grand jury recommends that a
person be brought to trial, then he probably committed the
crime.

Reasonable
doubt

1A defendant should be found guilty
if 11 out of12 jurors vote
guilty.

2Too often jurors hesitate to
convict someone who is guilty out of pure sympathy.

3The death penalty is cruel and
inhumane.

4For serious crimes like murder, a
defendant should be found guilty so long as there is a 90 per cent chance that
he committed the crime.

5Extenuating circumstances should
not be considered — if a person commits a crime, then that person should be
punished.

6Too many innocent people are
wrongfully imprisoned.

7If a majority of the evidence — but
not all of it — suggests that the defendant committed the crime, the jury should
vote not
guilty.

8If the defendant committed a
victimless crime like gambling or possession of marijuana he should never be
convicted.

B. Other Issues

Broadly speaking, the field of
Social Psychology concerns the study of the individual in a social context.
Within social psychology, the specific field of group dynamics theory can
be applied to many different types of small groups, including juries. However,
given the broad context of such research, the principles arising from research
in the area are largely global in nature and, so, difficult to apply to specific
situations. A complete review of these principles would be outside the remit of
this article. Nonetheless, a few universals are worth referring to briefly. For
example, when a group appoints a spokesperson, it is more often the first member
to speak, the person sitting at the head of the table, or a man. Each of these
effects occur when juries appoint a foreman. Secondly, juries—like other
groups—are prone to group polarisation, where deliberations usually
strengthen individual members’ initial impressions. Thirdly, the larger the
group, the more discussion of issues that takes place prior to reaching a
decision. Some American courts have experimented with five- and six-person
juries, and subsequent research on the matter suggests that the smaller juries
are more likely to hold secret ballots and less likely to examine the evidence
in detail. These principles of group dynamics suggest little in the way of
improving the effectiveness of juries, except perhaps that a twelve-member jury
is more likely to give the verdict more rigorous deliberation than the
six-person version. This is particularly interesting given that the US Supreme
Court has repeatedly argued that no difference exists between the two sizes,
with regard to decision-making.

VI. CONCLUSION

Psychological research has a
potentially enormous contribution to make to the effectiveness of court trials.
However, the various strands of research in the area are not without criticism.
Furthermore, it appears that some members of the justice system—particularly the
police—have a poor general understanding of the field of psychology and the
expertise of psychologists.

One
of the major sticking points concerns the predictive validity of the various
research methods employed. The use of mock trials in particular has been the
subject of some harsh criticism. Critics argue that there is a substantial
difference between a university researcher’s students discussing some
hypothetical court case and the deliberations of a genuine jury. However, there
are two main points to be remembered here. First of all, it is impractical—not
to mention illegal—to observe juries in the midst of their deliberations. An
attempt by Kalven and Zeisel (1966) to record the actual deliberations of jurors
(with the consent of trial judge and counsel, but the jurors were not informed)
was followed by many states making it a criminal offence to record jury
proceedings or in any way to interfere with the jurors pre-verdict. In the UK,
it is usually held that revelations about juries can amount to contempt of
court. However, in any science, direct observation of events in the real world
reduces the ability with which the researcher can clearly identify the causes
and effects of the observed occurrences. In any field of scientific inquiry, an
environment of ‘controlled laboratory conditions’ is essential. The essence of a
scientific experiment is the testing of hypotheses under controlled conditions,
and then the application of inferred principles onto events in the real
world. Human beings find it difficult to see themselves as the potential subject
of some scientific experiment. However, psychology—as the scientific study of
human beings—is not free from the obligations of the scientific method and
forensic psychology is no exception. Thus, although generalisations from the
laboratory to the real world must be made with care, videotaped or mock trials,
together with mock juries, are important tools for learning about the trial
system.

Methods
of studying juries.Baldwin and
McConville (1980) point out that most methods are indirect and, hence,
inevitably imperfect.

1.Autobiographical
accounts by jurors are unavoidably partial and idiosyncratic, conveying a wide
spectrum of views, from the adulatory to the appalled.

2.The publicly expressed
views of legal practitioners. These are much less varied, usually being
positive, but inevitably do not allow generalization.

3.The systematic
collection by researchers of jurors’ opinions. These suggest a general lack of
understanding of legal concepts.

4.Simulated jury panels. The great advantage of this approach is that their
deliberations can be recorded and analysed and systematic variations introduced.
In the usual version, a mock jury is presented with a reconstruction of a real
trial, perhaps a tape of actors reading from a trial transcript. A further
development is the shadow jury, which is put into the courtroom along­side,
as it were, the real one. Their subsequent deliberations are then recorded
(e.g., Diamond and Zeisel 1974). While the shadow jury is much more exposed to
courtroom reality than simulated juries, neither has to determine the fate of
the defendant in question. However, the
generalisation from the laboratory to the real world need not always be
deficient. For example, in the research on eyewitness testimony discussed above,
college students served as mock witnesses. College students are generally of
above average intelligence and are accustomed to having their performance
examined. If substantially poor memory performance is obtained with college
students, then a convincing case can be made that the performance of actual
eyewitnesses will be at least as poor, if not poorer. In any case, it certainly
appears that eyewitness testimony is problematical, but it would take a large
number of virtually identical court trials to establish this problem clearly or
to suggest solutions. In real life, no two court trials are identical. In
summary, no psychologist would claim that the use of mock trials, videotaped
trials, or mock jurors is going to establish without doubt the outcome of every
possible trial in the future. However, the use of such experimental methods
provides us with a wealth of knowledge which can reasonably be applied to the
interpretation of genuine court trials.

5.The performance of
juries is pitted against the views of other participants in trials. This method
was pioneered by Kalven and Zeisel (1966). Baldwin and McConville (1980)
consider it to be “the most illuminating;” nevertheless, the judges or counsel
studied “recollect in tranquillity,” whereas the jurors made their decisions in
the context of the actual trial.

Research on jury selection.In the USA prior to 1968, the “key man”
system was often used. This meant that key members of the community recommended
people for jury service. In 1968, The Jury Selection and Service Act required
voting lists to be used as sources of jury pools so that the representativeness
of juries improved. But the young, racial minorities and the poor are still
significantly underrepresented (Hans and Vidmar 1982).This is linked to administrative
discretion, usually vested in court clerks, and there is some evidence of
informal discrimination at the initial selection stage, fewer women than men
being called.

Courtroom
challenges to jurors are extremely rare in Britain (one in the early 80’s was
thought to be the first for 150 years) but are very much more frequent in the
USA, particularly in trials for murder (see below) and in those with political
overtones. In the 1972 trial of the Berrigan brothers on conspiracy charges, a
group of social scientists conducted community surveys to determine the
characteristics of people favourable or opposed to the defendants and then
constructed ideal juror profiles so that defence attorneys had much information
on which to base their challenges. The same techniques have been used in other
celebrated cases. In describing this approach. Hans and Vidmar (1982) raise
doubts both as to the effectiveness and the ethicality of such work.

In
the USA, about 5 per cent of jurors are removed for cause, that is by the judge,
on the basis of voir dire responses. Removals by per­emptory challenges (by
counsel) are more frequent. In the federal courts, in felony cases, each side is
given five challenges, in misdemeanours, two, Rights to challenge are used
frequently, particularly by the defence — about three times more often than by
the prosecution.

Most
simulation studies show no effect of the sex of jurors but a few suggest women
to be more defence oriented, except in the case of rape, in which they lean more
toward the prosecution in their decisions (Hans and Vidmar 1982). Demographic
and attitudinal data show a very limited ability to predict verdicts (Penrod
1980). Greater specificity of attitude questions (e.g., towards rape in a rape
case) improves predictions. In principle, lawyers should try to assess
case-specific attitudes rather than either general attitudes or demographic
variables.

In
fact, the evidence on attorney effectiveness in weeding out biased persons is
somewhat contradictory (Hans and Vidmar 1982). They cite a study by Zeisel and
Diamond (1978) as the only one providing direct information on this issue over a
number of cases. The latter arranged for the challenged and rejected jurors in
12 cases to attend the trials concerned and to vote at the end of each
concerning their verdict. In addition, Zeisel and Diamond interviewed the
empanelled jurors at the end of the trial to get their votes on the first ballot
(it is often the case that several rounds of voting are needed to reach a
sufficient majority). This enabled them to reconstruct the first ballot vote of
the original jurors in the absence of challenges. In two of the 12 trials the
difference between the two first ballot votes was large enough to have produced
a different verdict in the absence of challenges (i.e., the attorney’s
challenges were effective in these cases). There were great variations in
attorney’s abilities to eliminate biased jurors. Zeisel and Diamond
con­cluded that, under the usual conditions of limited information about
juror attitudes, most attorneys are only marginally effective most of the time
in weeding out biased jurors.

A
rather different approach to the effectiveness issue was taken by Jones (1987).
Noting that jurors frequently distort their replies to ques­tions during the
voir dire she asked whether more accurate information was elicited by the judge
or by attorneys. The attitudes of potential jurors were assessed both by
questionnaire and then verbally in court. She found that attorneys were more
effective than judges in eliciting candid self-disclosure from potential jurors
and that participants changed their answers almost twice as often when
questioned by judges as by attorneys. Jones concluded that the presence of the
judge during challenges evokes a considerable pressure towards conformity among
jurors to a set of perceived judicial standards. This is reduced by
attorney-conducted voir dire, allowing individual biases to emerge and those
holding them to be rejected.

Hans
and Vidmar’s (1982) overall conclusion seems sensible: jury composition is
probably not very important for the normal run of criminal cases but may be for
the minority of political or socially controversial trials in which juror
attitudes are likely to be polarized and the right to challenge might be
crucial. However, in view of the retention of the death penalty for murder in
the USA, juror attitudes to the capital sentence have been of great interest,
both, to legal practitioners and to researchers.

A
special case: death qualification. This is the process by which the courts
identify and exclude from capital juries those persons whose views on the death
penalty are considered incompatible with the duties of capital jurors
(Fitzgerald and Ellsworth 1984). It followed from the case of Witherspoon versus Illinois heard in the US Supreme Court
in 1968. The Court decided that those unwilling to impose the death penalty, on
principle, regardless of the evidence, should be excluded from the jury
concerned. Subsequently, in Hovey
versus Superior Court (heard in
the California Supreme Court in 1980), a contrasting group was identified —
automatic death penalty (ADP) persons, who would always vote for the death
sentence, irrespective of the facts of the case.

Fitzgerald
and Ellsworth (1984) suggested that death qualified juries (those from which
persons who are anti-capital punishment have been excluded under Witherspoon) might be biased against
capital defendants. They compared the demographic characteristics and attitudes
to capital punishment of a random sample of over 800 eligible jurors in Alamedo
County, CA. Just over 17 per cent were “excludable”, including
sig­nificantly greater proportions of blacks than whites and females than
males. Death qualified respondents were consistently prone to favour the point
of view of the prosecution, to mistrust criminal defendants and their counsel,
to take a punitive attitude to offenders, and to be more concerned with crime
control than with due process.

Two
further studies by this group of researchers add to the case against death
qualification. Both used video-simulated murder trials and included death
qualified as well as excludable participants. The first (Cowan, Thompson, and
Ellsworth 1984) found that death qualified persons were significantly more
likely to vote guilty, both on an initial ballot and after an hour’s
deliberation in 12 person juries, when these consisted solely of death qualified
participants, than when they were mixed (two to four excludables took part).
Mixed juries were more critical of witnesses and were better able to remember
their evidence than those which were homogeneous, so that diversity may improve
the vigour, the thoroughness and the accuracy of jury deliberations. And
Thompson, Cowan, Ellsworth, and Harrington (1984) found death qualified jurors
to be more favourable to the prosecution and to express less regret concerning
erroneous convictions, but more regret about wrong acquittals, compared with
excludables. Horowitz and Seguin (1986) also found death qualified jurors to
give the most severe sentences. In a study of actual jurors, Moran and Comfort
(1986) reported that those favourable to capital punishment tended to be white,
male, married, politically conservative and authoritarian. They reported
reaching their verdicts more quickly and participated more in jury discussions
than their demographic and personality counterparts.

In
a mock murder trial experiment, Ellsworth (1993) used jury-eligible California
residents and showed them part of a video of a police officer’s and the
defendant’s testimony in an assault trial. Ellsworth found that supporters of
the death penalty were more likely to vote guilty immediately before jury
deliberations had taken place. Ellsworth argues that attitudes come in a
‘bundle’. Death penalty sup­porters tended to show more trust in police
prac­tices and to be more sceptical of the defendant’s case, compared to
those opposed to the death penalty.

Summary of the results
from Ellsworth (1993) Mean evaluation of evidence by supporters and
non-supporters of the death penalty

Supporters

Non-supporters

Officer’s
truthfulness

4.55

3.44*

Defendant’s
truthfulness

3.69

3.05

Accuracy
of witnesses

4.35

3.25**

Scale
ranged from 1 to 6; higher number indicates more favourable to evaluation

*= significant difference at p0.05; ** =
p0.01.

The
evidence against the system of death qualification seems clear and unequivocal,
but Turkington (1986) points to the decision of the US Supreme Court of April
1986, in the case of Lockhart versus
McCree. By a majority of five to four
the Court decided that excluding jurors opposed to the death penalty does not
violate a criminal defendant’s right to a fair trial. The Court made it clear
that its decision was reached without regard to social science research, which
suggests that death qualified jurors are more prone to convict precisely when
the evidence is ambiguous. The Court based its decision instead on legal
analysis, but the majority did note “several serious flaws in the social science
evidence accepted by the lower courts,” asserting that many studies were
irrelevant and that all were simulated. In contrast, the four-person minority
termed the scientific evidence “unanimous and overwhelming” (a rare state of
affairs in the social sciences!). Had the Court ruled in favour of McCree (i.e.,
if one justice had voted for instead of against) 1,714 death row inmates,
convicted by death qualified juries, could have requested new trials (Turkington
1986).

Jury size.

Zeisel (1971) suggested the greater the size of the jury, the
greater the risk of a hung jury. A hung jury is one in which a verdict is not
possible. There is some evidence that a requirement of unanimity in the decision
increases the likelihood that the jury will be hung. Similarly, it is possible
that complex cases are more likely to result in failure to reach a decision. In
research to test these ideas (Arce et al., 1998), participants eligible
for Spanish jury service were selected at random from the electoral
register.

Gender was equalised in the juries. Participants viewed the
re-enactment of a real-life rape trial including the testimony of eyewitness and
forensic experts, opening and closing defence and prosecution arguments, and the
judge's definition of the legal terms involved and the decision rule. The
participants were randomly assigned to one of a number of juries that were then
studied through the use of questionnaires. Among the findings were the
following:

.

Hung juries deliberated longer.

.

Hung jury members employed more assertions in their
communications with each other.

It is impossible to summarise the studies into the effects of
jury size on verdicts and other matters. Fortunately, there is available a
meta-analysis which summarises the findings of 17 studies (Saks and Marti,
1997). The following trends were found in the research studies:

.

Deliberation time is longer for larger
juries.

.

Hung verdicts are commoner for larger juries.
This is a finding that is really only true for studies that
used a mock jury. In studies involving real juries, hung verdicts were rare -
they occurred in only about 1 % of instances.

.

Guilty verdicts are not more common in large
juries.

.

For civil cases, smaller juries tend to award more to
the injured party.

These trends were found for studies that have a unanimous decision rule (that
is, all of the jurors must agree for a guilty verdict). There is evidence to
suggest that such juries tend to be evidence driven. For example, they make more
references to the evidence, establish more connections between the evidence and
legal issues, examine the evidence in detail, and their deliberations are more
exhaustive and detailed. Juries operating with a majority decision rule are more
driven to reach a verdict. So majority verdict juries are more likely to begin
their deliberations with a vote. For example, Arce et al. (1998) compared
six- and twelve-person juries that used unanimous decision criteria. The smaller
juries made rather fewer references to the evidence and seemed to make fewer
pro-defendant arguments.

The
performance of juries.This has
been one of the main preoccupations of researchers into the jury system. Baldwin
and McConville (1980) note that some reviewers consider juries, both real and
simulated, to be very competent, deciding their verdicts solely on the evidence.
But they themselves are much more cautious:

1. The considerable
evidence that mock juries are markedly influenced by defendant attributes, and
the possibility that this is as true of real life juries, was reviewed
above.

2.
“Juries are as likely to understand the meanings of the words in the judge’s
charge as if they were written in Chinese, Sanskrit or Choctaw” (Frank 1949).
Arens, Granfield, and Sussman (1965) have also pointed to the difficulties
juries have in understanding the more technical content of instructions. (A
comprehensive overview by Ley, 1977, shows the problems patients have with
doctor’s com­munications.) Severance, Greene, and Loftus (1984) have
reviewed the considerable evidence concerning juror difficulty in understanding
judge’s instructions. They developed a set of standard instructions to improve
those revealed by their research as problematic, using legal as well as
psychological criteria. The revised set was found to increase significantly the
understanding of mock jurors, compared with a stan­dard set, and a survey of
experienced judges indicated their strong preference for the revised set.

3.
A high proportion of jury acquittals is not seen as justified by other
participants (judges, lawyers, etc.). Conversely, in about 6 per cent of
convictions doubts are expressed by two or more of the other main participants
(including the police), indicating that certain juries were too easily convinced
of the defendant’s guilt. (The study by Kalven and Zeisel, 1966, which contains
evidence of major judge—jury divergence, was described above.) As Baldwin and
McConville (1980) point out, we need to know if these questionable verdicts are
evenly distributed, across both defendants and offences, or are biased, for
example, against minority groups and toward serious crimes.

4.
Even when ordered to do so, jurors do not ignore evidence presented which is
then ruled as inadmissible. They are affected by pre-trial publicity, and they
do not give a reduced weight to witnesses who qualify their testimony under
cross-examination (Monahan and Loftus 1982).

5.
It may be that juries are less able than professional judges to avoid the
pitfalls of eyewitness testimony.

Baldwin
and McConville (1980) conclude that the jury trial is an unpredictable method
for discriminating between the guilty and the innocent, and that the reverence
accorded the system is misplaced and excessive.

Nevertheless,
research data from both the USA and Europe indicate that the “adversarial model”
(prosecution, defence, judge, and jury) found in the English speaking world is
seen as more fair than the “inquisitorial model” (defence lawyers are present at
every inter­rogation, there are separate judges for the examination and the
trial, and no jury) used in most European countries (Monahan and Loftus 1982).
Perhaps reluctantly, Baldwin and McConville (1980) agree that alternative
systems might be equally imperfect. The jury system seems set for a long lease
of life.

Jury decision-making

There is an assumption that
‘jury deliberation is a reliable way of establishing the truth in a contentious
matter’ (Stephenson, p.179), but it has been suggested that most jurors have
already decided on a verdict before they retire to deliberate, and that the
first ballot usually reveals a majority preference (Kalven and Zeisel, 1966).
Pennington and Hastie (1990) disagree with this finding and suggest that the
process towards achieving a final agreed verdict is much more complex, while
Sandys and Dillehay (1995) surveyed 142 ex­-jurors and revealed that an
average of 45 minutes was spent discussing cases before a first ballot was
taken.

In the jury room discussions
it seems that those who talk the most are ‘socially successful’ jurors, men, and
the foreperson (Ellsworth, 1993). The longer the jury is out the more likely it
is they will acquit (Baldwin and McConville, 1980), and as discussion continues
the minority are more likely to agree with the majority
view.

Various mathematical models
have been developed to explain the processes by which juries reach their
decisions, but Pennington and Hastie (1993) suggest an alternative model in
which jurors actively construct explanations for the evidence presented to them
in order to reach a verdict. This dynamic process is therefore entirely
dependent on cognitive processes of selection, attention, interpretation and
recall which relate to pre-existing schema, and this explains why two jurors
presented with the same evidence can reach quite different verdicts. It also
suggests that the influence of pre-trial publicity in terms of constructing
possible narratives can be highly significant (see Freedman, Martin and Mota,
1998).

Jury
decisions are influenced by three groups of fac­tors: jury composition, the
decision-making process, and the characteristics of the defendant.

Jury
composition

Decision-making
process

Characteristics of
defendent

Size
of jury

Majority
influence / conformity

Stereotyping
process

Characteristics
/ attitudes that influence verdict

Group
polarization

Physical
attractiveness

Influence
within jury

Groupthink

Race

Emergence
of leader

Accent

Social
loafing

Individual differences within
juries

But
specific research into juror variables (like gen­der, age, race, occupation
or personality) found that they are not related to juror decisions. In other
words, the verdict cannot be predicted from the make-up of the jury. Research
into juries in Birm­ingham by Baldwin and McConville (1979) believed that
‘no single social factor’, including social class, led to significant effects on
the verdicts returned.

However,
one personality type that does seem to influence jury decisions is the
‘authoritarian person­ality’ type. This is a personality type who is very
nar­row-minded, against change and holds strict con­servative views. It
is usually measured using a questionnaire called the ‘California F Scale’.

Using
the OJ Simpson trial, Chapdelaine and Griffin (1997) found a correlation between
the ‘Cal­ifornia F Scale’ and the belief in Simpsons guilt, the perception
of the fairness of the trial and the sever­ity of the recommended sentence.
Thus, the author­itarian personality’ type were more likely to see Simpson
as guilty, believe the trial was fair and rec­ommend longer sentences.
However, overall, the decisions were based on an appropriate sentence for
Simpson rather than the general belief of guilt.

Other
research has found that there is a positive correlation between the trial
experience of the juror and the severity of the sentence, irrelevant of the type
of prior experience. There is a limited amount of research suggesting that men
are less likely to convict a rapist.

Among
the jury members, those of higher occu­pational status were more involved
and more influ­ential. Hastie et al
(1983) set up 69 mock juries and found that the most talkative were dominant
in the group — and these were more often male. The 34—56 age group was also seen
as more influential.

Where
the background of jurors may influence their views is in their reaction to the
evidence. For example, jurors from certain areas (like inner cities) may not be
surprised or see it as unusual that the defendant was car­rying a
weapon.

Decision-making process

The
difficulty with research in this area is that it is illegal to study the jury at
work or question jurors afterwards. This means that any research must be with
mock juries. It is generally assumed that the jury decision-making process is
similar to that of any small group making decisions.

The
decision-making process of any group passes through three stages that can be
applied to juries (Hastie et al,
1983).

•‘Orientation process’ — an agenda is set
and the evidence is explored.

•‘Open conflict’ — where differences of
opinion become obvious and there is a focus on disputed evidence. This tends to
be a move from facts to emotions.

•‘Reconciliation’ — either the conflict is
resolved and a verdict is given or the majority attempt to persuade the others.
The main point is that attempts are made to reduce any previous conflicts.

In
the main, the majority opinion tends to predom­inate. For example, Kalven
and Zeisel (1966) found that of 215 juries with a majority view at the
begin­ning of the deliberations, only six changed to the minority decision
by the end of the discussions. But there is evidence of a ‘leniency bias’ to
favour the defendant, the longer are the deliberations. So if there is
disagreement, it is easier to persuade jurors of a not guilty than a guilty
verdict during the delib­erations.

Currently,
juries are required to reach unanimous decisions (that is, they all agree on the
verdict). This could take longer than a majority verdict (for exam­ple,
10:2), and so increase the possibility of ‘leniency bias’.

In
Britain a jury does not have to be in total agreement; a majority of 10 to 2 is
sufficient to secure a conviction. In the USA the rules vary from state to
state, with respect to both the size and unanimity of juries. Nowadays few
states allow a less-than-unanimous verdict in criminal trials, although many do
so for civil cases.

The
effect of using a majority versus a unanimous verdict system was investigated in
mock trials by Nemeth (1977). He asked student jurors to make decisions about
the guilt or innocence of a person charged with murder and organised the juries
so that they included some members initially in favour of acquittal and some who
were initially predisposed towards conviction. Some juries were required to
reach a unanimous verdict while others were allowed to reach a verdict based
only on a two-thirds majority. Some significant differences emerged between the
two groups. Compared to the majority-verdict groups, those who had to reach a
unanimous decision debated for longer, were more likely to take account of
minority views and were more confident in their final decision. More
significantly, they were also more likely to change from their original
judgement. Hastie et al. (1983)
conducted a similar study using 69 mock juries and requiring either a 12 to 0, a
10 to 2 or an 8 to 4 verdict. Compared to the juries requiring a unanimous
verdict, those requiring a majority one spent less time discussing and more time
voting and they did not continue any deliberation after the required majority
had been reached. As in the previous study, these jurors were less confident and
less satisfied with the decisions they had made. Perhaps even more disturbing is
the observation by Hastie et al. that
when a unanimous verdict was not required the jurors who were in the majority
used coercive, forceful and bullying tactics to try to persuade those who
disagreed with them.

The
general opinion of social psychologists is that a majority verdict reduces the
effectiveness of juries. There may, however, be some occasions on which it is
useful. If, for example, a single bigoted juror insists on sticking to an
opinion despite it not being based on any evidence (‘I don’t care what anyone
says, you can tell by looking at that lad that he did it’) then at least they
can be ignored. Nevertheless, the overall verdict is that expressed by Brehm
& Kassim (1996) when they state that ‘it is clear that this procedure
weakens jurors who are in the voting minority, breeds close-mindedness, inhibits
discussion and leaves many jurors uncertain about decisions’ (page
487).

Generally, very little is known about the psychological
processes that happen in real juries as opposed to the mock juries of the
psychological experiment (McCabe and Purves, 1974). Myers (1979) chose a
somewhat circuitous approach. She considered the cases of about a thousand
defendants on felony charges in Indiana. Two thirds of the cases involved trials
by jury. Myers obtained qualitative data from a variety of
sources:

.

file folders of the assistant
prosecutor;

.

police arrest records;

.

telephone interviews to obtain any necessary
supplementary data.

She was on the prosecutor's staff at the time so was also able to conduct
informal discussions with prosecutors and court personnel.

She found that the following factors influenced the jury's
decision of guilt:

.

a weapon was recovered;

.

a large number of witnesses were
specified;

.

the defendant or an accomplice made a statement either
concerning involvement in crime or lack of involvement in crime;

.

the defendant had large numbers of previous convictions
(admissible evidence there);

The fundamental attribution error

As
a general rule, when people explain the behaviour of others, they tend to overestimate the role of personal factors
and underestimate the impact of the situation. This is such a pervasive bias
that it is known as the fundamental attribution error (Ross, 1977). Many studies
have demonstrated that even when the causes of people’s behaviour are very
obviously situational, people still attribute it to their personality. For
example, Jones & Harris (1967) asked students to read out an essay either
favouring or opposing Fidel Castro’s regime in Cuba. Although it was made quite
clear to the audience that the essays had been allocated to the students by
their teacher and were not their own work, the narrators were still considered
to hold the opinions expressed in the essay they had read.

Stanley
Milgram placed people in a situation in which they
were required, in the name of research, to give a ‘learner’ an increasingly
severe electric shock (never actually administered) every time he made an error
on a simple memory task (Milgram, 1963). The results of this study were
profoundly disturbing: a staggering 65 per cent of people were prepared to
administer shocks so severe that they could have been lethal, even though the
victim could be heard to scream, yell, complain about a serious heart condition
and then fall silent. When people hear of such behaviour, their usual conclusion
is that any individual capable of performing such acts is a sadist.
Psychiatrists, psychologists and members of the general public interviewed by
Milgram prior to the study estimated that fewer than one in a thousand people
would give the highest level of shock. But the behaviour of the participants
during the study showed they certainly were not being deliberately cruel. The
great majority of participants were absolutely distraught, continually
questioned the procedure and argued to be released from the study. They were not
sadistic — they hated every minute of the study but they felt locked into a
situation from which they could not escape. It was the situation, not the
disposition of these individuals that was responsible for their potentially
cruel behaviour. The assumption that cruel actions are motivated by an ‘evil
personality’ is an example of the fundamental attribution error.

The just world hypothesis

Lerner
(1980) suggested that people have a need to believe in a world that is just and
fair, a world in which people get what they deserve. In this way we can protect
ourselves from the unpalatable truth that we could fall victim to the cruel
twists of fate.

However,
this belief is often strongly challenged by the fact that we regularly hear
about events that involve the suffering of innocent victims and the unjust
treatment of people. Rather than surrender our belief in a just world, we find
ways of interpreting the causes of people’s behaviour in such a way that it
restores our faith in a just world. There are several ways in which this can be
done.

•We can blame victims for
their own misfortune. For example, we can accuse a victim of burglary as
being careless and not securing their property adequately.

•We can vilify the character
of victims, so they are perceived as deserving of their fate. For example, we
may believe that battered wives provoke their abusive husbands or even have a
personality type that is attracted to such behaviour.

•We can help the victims or
compensate them in some way.

The
tendency to disparage victims can be viewed as yet another example of the
fundamental attribution error — too much emphasis is put on the person and not
enough on the situation. Although believing in a just world is common, there are
marked individual differences in the strength of this belief. A strong believer
in a just world is relatively unsympathetic to victims of misfortune and is also
unlikely to take account of mitigating circumstances that may lead someone to
commit a crime. Such individuals are more likely to be biased in their
judgements whether they are witnesses or jurors.

One
of the most disturbing aspects of the Just World Hypothesis is the attitude that
is sometimes expressed towards rape victims. ‘She must have led him on’, ‘She
was asking for it walking home that late at night’, ‘What does she expect
dressed like that?’ are the kinds of comments often heard in media reports of
rape. Bell et al. (1994), using a
simulated jury situation, asked male and female college students to consider
four different incidents of rape, two of which concerned rape by a stranger and
two which involved date rape. Both males and females placed considerably more
responsibility for what happened when the victim knew her assailant than when he
was a stranger, and males ascribed more blame to the victim in both conditions
than did females.

Pollard
(1992) has reviewed many studies looking at judgements about victims and
attackers in depicted rapes. He reports that, generally, females make more
pro-victim judgements than males do, as do those people with non-traditional
sex-role attitudes. The victim’s dress and past history also have a consistent
effect in that the more scantily or provoca­tively dressed and the more sex
partners the victim has had, the less sympathy they receive. Pollard points out
that not all results found in experiments are directly relevant to a trial
situation: for example, data on sentencing has no direct application since
juries don’t recommend sentences.Indirectly though, juries are aware of the likely sentence that can be
imposed and this can influence their decisions.

Hedonistic
relevance

Piaget
(1932) reported that children think that somebody has greater responsibility for
their actions if the outcome is relatively bad, even if the intentions were
good; hence a child helping his father to fill his inkwell who spilt the ink
over the carpet was naughtier than another child who deliberately spilt ink on
some blotting paper, when told he shouldn’t.In courtrooms hedonistic relevance comes
into play when for example a man who falls asleep at the wheel of his car but
comes to a halt safely on the verge is judged to be eligible for a small
punishment.If, however, the same
driver ended up on a railway track and subsequently killed a number of people on
a train that ploughs into his car, he is judged to be deserving of a substantial
custodial sentence.Logically, in
both cases the man’s actions are the same and the punishment should be just as
severe in both cases, but our psychology does not allow us to easily agree with
this.This principle was tested by
Walster (1966); participants were asked to judge how responsible a car owner was
for the fact that his hand brake cable snapped.When the car rolled down a hill and
badly injured someone the owner was deemed more responsible than when the car
did not injure anyone.The
experiment has been criticised because responsibility is confounded with being
reasonably able to foresee what might happen.

Failure to use
the discounting principle

The discounting principle (Kelley, 1971) predicts that we
choose the most obvious explanation for somebody’s actions.When we see a famous personality
advertise a product we would choose to believe that he or she advocates a
product because of a large fee, rather than he or she really recommend the
product.So in a court of law we
might assume that if a confession is obtained under duress then the jury would
disregard the confession.Unfortunately this is not always the case.This could be because the jury believe
in a fair world where all police behave correctly at all times, even when
interrogating a suspect.Another
explanation could be the fundamental attribution error.The reasoning here would be that the
defendant confessed therefore he must be guilty, completely disregarding
situational factors.

The Story Model

The
Story Model proposes that jurors go through three stages in their
decision-making.

1They decide on a story that,
in their opinion, provides the best account for the events that occurred. This
story will depend on the evidence, on world knowledge and on the personal
experiences of the Juror.

2In the second stage the
jurors are required to learn the verdict categories that could apply in that
particular case.

3Finally they have to find the
best fit between the verdict category and the story and come to a conclusion
about the guilt or innocence of the defendant.

Pennington
& Hastie (1986) have tested their model by conducting many studies in which
mock jurors are requested to carry out their deliberations out loud. As a
result, they have presented substantial empirical evidence in support of the
model. Their current research focuses on aspects of the model not yet
investigated, such as when exactly the story is created and whether jurors
construct several stories and then choose between them, or if they construct
just one.

Note taking

Penrod and Heuer (1997) review the evidence coming from field experiments
involving a fairly large number of different judges, trials, lawyer and jurors.
In one national study, judges gave the jurors permission to take notes as soon
as was practicable in the trial. The majority of jurors took up the option
although as many as a third chose not to in some instances. On average, taking
into account the civil and criminal trials, just over half a page of notes were
taken each hour of the trial. While studies do not show a spectacular effect of
note-taking, some of Penrod and Heuer's conclusions are of particular
interest:. Note-taking does not interfere with a juror's ability to keep up
with the proceedings.

. Note-taking seems to be neutral in regard to the prosecution and
defence cases in terms of its effects. . Note-takers do not concentrate
more on the evidence in their notes than on the other evidence
available.. Note-taking jurors are not more satisfied with the trial, the
judge or the verdict than those who do not take notes.. The notes are at
best a small assistance to remembering aspects of the evidence.. The notes
taken tend to be accurate records as far as they go.Similarly, research into
the effectiveness of allowing jurors to ask questions using similar methods led
Penrod and Heuer to the following conclusions:. Jurors do understand the
facts and issues better if they ask questions.. Allowing questions seems to
make no difference to the jurors', judge's and lawyers' satisfaction with the
trial and verdict.. If a juror asks an inappropriate question, lawyers will
object and the jury does not draw inappropriate conclusions from this. However,
generally speaking, the jurors ask perfectly appropriate questions.In other
words, research of this sort tends to demonstrate little or no negative
consequences of the potential innovations of note-taking and juror questions,
and modest, at best, improvements.

Jurors and conformity

Experiments
with mock juries find that if two-thirds of the group agree then that decision
will eventually win. Any less, and the group becomes deadlocked. Generally in
psychology it has been of interest how the majority win through. The research on
con­formity pressures show that the minority will change for a number of
reasons.

Conformity
is when an individual gives up his or her personal views under group pressure.
Within a jury situation, two types of conformity may occur: normative and
informational. In the latter case, the individual conforms to the group norms
because he/she does not know what to do and looks to the group for guidance. It
may be that the individual does not understand the legal technicalities of the
case. With normative conformity, the individual outwardly conforms to avoid
rejection by the group or to gain rewards from them, but inwardly
dis­agrees. This is a more superficial form of conform­ity.

Solomon
Asch undertook the classic study of normative conformity in the 1950s. He asked
individuals to say in front of a group of peo­ple which two out of four
drawn lines were the same length. The answer was obvious. But a number of the
group members deliberately gave the wrong answer. Would the ‘real participants’
(the others in the group were working for the experimenter) fol­low their
own judgements and give the obvious cor­rect answer or conform to the group
with the wrong answer? The participants conformed in about one-third of the
trials.

Asch
(1951) developed this experiment to pin down the factors involved in conformity.
He found the best group size to gain conformity was 7:1. Also, greater
conformity was produced by the more diffi­cult the task, or the higher the
status of group mem­bers.

Group polarization

Another
decision-making process observed in groups is known as group polarization.
Stoner (1961) was the first to experimentally study group polarization, but it
was called ‘risky shift’ at that time. Participants were given twelve dilemmas
to think about by themselves, and then asked as a group to discuss the dilemmas.
Stoner found that the group decisions were riskier than the individual
decisions. Moscovici and Zavalloni (1969) coined the phrase ‘group polarization’
to show that group decisions would always be more extreme (either riskier or
more cautious) than the individual decisions.

Group
polarization can also be noted with federal judges either sitting as a ‘three’
or ‘one’ during a trial. The three judges gave 65% of their judgements as
‘lib­ertarian’ (less harsh) compared to 30% by the individual judges.

The
opinions of the majority are hugely influential in the final decisions made
within a group and juries are no exception to this rule. Hastie et at. (1983) found that if the first
decision favoured acquittal, then in 86 per cent of cases a not guilty verdict
was returned. If at the outset the majority favoured a guilty verdict, then in
90 per cent of cases, that was the final outcome.

Social
psychologists explain group polarisation in terms of the need to make sense of
the social world. Many people hold the view that if most people think something
is correct then it probably is. Interviews with jurors and studies of mock
juries show that the majority has a powerful influence over the minority. The
extent of this influence is surprisingly strong, as shown by Asch (1955).If people are prepared to deny the clear
evidence of their own eyes on a simple task, as 75 per cent of the participants
in this study did at least once, consider how much more powerful the influence
of the majority may be when considering whether they are right or wrong in a far
more ambiguous situation. The experience of being in a small minority,
especially a minority of one, can create considerable anxiety, which is reduced
by conforming to the majority decision.

Where group polarization doesn’t
apply

Generally
group polarization does not apply in situ­ations where individuals are
arguing for something they believe in. However, the effect is also influenced by
identification with the defendant, the vic­tim or the authorities. This
process is through the social identity theory, where individuals
‘self-stereotype’ themselves based on the groups they feel they belong to
(Wetherell, 1987). For example, a former police officer on the jury may identify
with the police officers giving evidence, and be influ­enced in his or her
verdict that way.

Groupthink

The
decision-making process of a group can also show evidence of ‘groupthink’. Janis
(1972) sees ‘groupthink’ as the pressure to reach a consensus that leads to an
extreme or bizarre decision. This sit­uation could particularly happen to
the jury in a long, highly publicized case.

There
are certain conditions that facilitate ‘group-think’: the group is highly
cohesive (that is, it has strong group identity), it is insulated from outside
information, it is under pressure to make a decision, all the options are not
assessed, the group feels the responsibility in making a very important
decision, and there may be a dominant, directive leader.

Commentary

Janis
has studied ‘groupthink’ with political decisions, a famous example being
President Kennedy’s decision in the 1960s with the Bay of Pigs. This was the
area sug­gested for the invasion of Cuba by American troops, but itwas the worst place to do such a thing
(because itwas marshland).

Psychodynamics

A
completely different approach to understanding group decisions comes from
psychodynamics. These ideas come from the work of Sigmund Freud and place great
emphasis on the unconscious processes in the group. The jury has a task to
per­form, but it is ‘as if another group, comprising the same individuals
was operating simultaneously, at the unconscious level’ (Morgan and Thomas,
1996).

Thus,
the jury decision may be more about these processes than the actual evidence.
For example, a jury may convict a child murderer out of the uncon­scious
fear for their children rather than on the evi­dence. However, this view of
the group has little empirical support.

Social loafing

Another
area of interest is whether all members of the juries contribute equally to the
decision. In a group where there is no individual recognition of effort,
research has noted a phenomenon called ‘social loafing’. Williams et al (1981) define this as a ‘reduction
in individual effort on a collective task (in which one’s outputs are pooled
with those of other group members) compared to when working either alone or
coactively’.

In
a classic experiment, Latane et al
(1979) asked participants in a sound studio to make as much noise as
possible, and the level was measured. First, they did this alone. Then the
participants were told that they were linked to other studios and the joint
noise levels would be measured. In fact, this was not true. But when the
participants thought they were part of a group of six, their individual level of
noise dropped by around a quarter, compared to when they believed they were
alone. In other words, they were putting in less individual effort to the group
cause. Applying this research to the jury situation, the larger the jury, the
less individual effort each jury member will put in.

Commentary -

Because
itis impossible to study real juries, it
is assumed that all these psychological processes of groups are at work. A
limited number of studies have tried to assess the accuracy of the jury decision
by comparing itwith the judge’s view. In one American
study of 3,500 cases, there was around 80% agreement between the judge and jury
on the verdict (Kalven and Zeisel, 1966).

The
strength of majority influence

Smith
& Mackie (1995) suggest that there are several factors which operate in
favour of the majority position.

•Firstly, when the
majority is offering a certain opinion the arguments are more numerous and
almost certainly more varied. The minority of the jurors who disagree with the
majority are likely to be presented with a set of persuasive arguments that they
had not previously considered and this is likely to move them towards the
majority view (Hinsz & Davis, 1984).

•Secondly, when
information and opinions are shared by several members of a group, they tend to
be discussed for longer than views
held by one person. Stassér & Stewart (1992) devised a situation in which
the majority of members of a group shared certain information but other
information was only given to a single individual. Even though the group were
specifically instructed to discuss all the infor­mation, they focused almost
entirely on that which was shared, to the almost total exclusion of the
non-shared information. This is another reason for majority influence: their
opinions receive considerably more discussion.

•Thirdly, majority
arguments are usually more compelling
than minority ones. When several people make the same arguments, it has more
impact than one offered by a single individual. People generally believe that if
several individuals have come to the same conclusion, then it is more likely to
be the correct one. Therefore the arguments that are advanced by the majority of
jurors tend to be very persuasive and move the group further towards the extreme
of their original opinion.

•Fourthly, majority
views tend to be expressed more
convincingly than minority views. With the benefit of knowing that most
people are on their side, members of a majority use a forthright and
argumentative style that is compelling (Kerr et al., 1987). Perhaps it is for this
reason that members of a majority are viewed as being more confident, logical
and intelligent than those of a minority (McLachlan, 1986), resulting in the
likelihood that they will convert them. Once again, the end result is group
polarisation.

In
summary, the majority view is more likely than the minority one to be accepted
because this view is expressed more often, is discussed more and in greater
depth, seems more compelling and is expressed more persua­sively than the
opinions of the minority. This quantitative and qualitative advantage leads to
group polarisation.

Minority influence

Usually
majority influence persuades those holding a minority view to accept the
majority view.However, upon rare
occasions a minority can persuade a majority to accept their viewpoint.Moscovici (1976, 1980, 1985) maintains
that the success of minorities is dependent on the behavioural style of the individuals
involved. If the minority is consistent
and flexible and their arguments
are relevant, then they may
eventually win over the opinions of the majority. The first of these factors,
the consistency with which the group defends and advocates its position, is the
most crucial. This consistency must be maintained between the minority group and
over time. If the minority members agree amongst themselves and continue to do
so, they may persuade the majority to question its own assumptions and seriously
consider those of the minority. To be successful, those people in the minority
must not appear to be rigid and dogmatic but flexible in their approach and
willing to discuss the reasons why they disagree with the majority.

Just
as we looked at why majorities are influential, it is appropriate to consider
why some minorities are successful in converting others to their point of view.
Nemeth (1977) suggests that when majorities are faced with a consistent minority
sticking to their guns, they are puzzled and try to work out why they are so
convinced they are right and so determined to express publicly these unpopular
views. The majority is therefore prepared to scrutinise these minority views
and, on occasions, be convinced by them. Even when minorities fail to sway
people initially, they may start a questioning process, which disconcerts the
majority and may eventually lead to change.

One of the reasons why a minority is
rarely influential may be the fact that not all jury decisions have to be
unanimous.

Leadership of the jury

Within
the jury one psychological process concerns leadership of the group. The jury
elects a foreper­son. Research has found that the person who is elected as
foreperson tends to be of a higher social class, or has previous experience of
jury work, or sits at the head of the table or speaks first (Strodt­beck and
Lipinski, 1985). In practice, this often means a man. In a San Diego study, Kerr
et al (1982) found that 90% of
forepersons were male, though the majority of jurors were female. However, the
foreperson may not be the actual leader of the group.

So
who emerges as the leader? General research on leaders has tried to establish if
there is a certain type of person who always emerges as the leader. This is
known as the ‘great person’ theory (or origi­nally as the ‘great man’
theory, because all the research was on male leaders). For example, Mann (1959)
reviewed hundreds of studies, but no clear patterns emerged.

Leaderless group
discussion

The
alternative view is to concentrate on the situa­tional approach and see who
emerges as the leader in a particular situation. Experimentally this is tested
by the Leaderless Group Discussion (LGD) technique, which involves a group of
strangers dis­cussing a particular topic. They are observed to see who
emerges as the leader, and group members are asked afterwards who they think
became the leader. For example, in highly ambiguous situations (where there is
no clear-cut answer), the most talkative individuals emerge as leaders. This is
called the ‘blabbermouth rule’ in some books. However, other research suggests
that it is often chance who becomes the leader.

In
a LCD experiment, the researchers led some participants to believe that they
were making impor­tant comments, and these participants emerged as the
leaders (whether they were most talkative over­all or not).

The
effectiveness of juries

In
an attempt to increase the objectivity and effectiveness of juries, Wrightsman
et al. (1994) have put forward a set
of recommendations based on empirical evidence and case studies of actual
trials:

1Jury exemptions should be
restricted so that juries are more represen­tative of the whole
population.

2The number of peremptory
challenges that can be made should be limited, and during voir dire the questions should be framed
so that they increase the likelihood of an honest response from jurors and
reduce the attorneys’ ingratiation techniques. Judges, rather than attorneys,
should do most of the questioning.

3To prevent the influence of
inadmissible evidence, the trial should be videotaped and edited to remove
objectionable material (the researchers acknowledge that this may be
impracticable).

4During deliberation the jury
should have access to a transcript or videotape of the trial to which they can
refer when questions arise.

5Jurors should be permitted to
take notes during the trial or refer questions to the witnesses.

6Instructions should be
clearly worded, given in writing as well as oral form and delivered at the
beginning and at the conclusion of the trial. In complex trials in which several
verdicts must be given, the questions that the jurors must answer should be put
into a logical sequence.